A President’s Words Matter, Part II: Impeachment Standards and the Case of the Demagogue

President Trump delivers remarks at the United Nations General Assembly in September 2017. (Photo: White House/Flickr)

I argued here recently that the president might find himself accountable in an impeachment inquiry for actively deceiving the public by denying Russian interference in the 2016 election. There is clear precedent: Richard Nixon’s lies to the public about Watergate were the subject of one article of impeachment approved by the House. In Donald Trump’s case, he has falsely stated that the concerns about Russia are a “hoax” when he knows from intelligence briefings that the opposite is true. He took the deception a step further by helping to draft Donald Jr.’s false statement about his Trump Tower meeting with Kremlin-linked Russian representatives offering to support the Trump campaign. As in Nixon’s case, Trump would likely answer for these falsehoods in an impeachment proceeding that would include other counts against him. But he would answer for them all the same.

Since my Sept. 27 essay, a number of readers have asked me whether it could possibly be true, or healthy for a democratic process, that a president’s words—his speech acts—might fall within the zone of impeachable offenses. It is useful and important to engage with these concerns.

In doing so, I would take my previous argument a step beyond the case of a president who lies about a matter like the Russia investigation, a criminal matter with grave national security implications. A president who is a demagogue, whose demagoguery defines his style of political leadership, is subject for that reason to impeachment.

Words—and the Case of the Demagogue

The objection to impeachment based on a president’s speech goes generally as follows: The talk of politicians is—for all sorts of reasons—loose, imprecise and not infrequently hyperbolic. At worst, the rhetorical excess to which many are prone can rise to the level of incontestable falsehoods, but there is always disagreement about whether specific claims are false. To police irresponsible or false political speech, and in particular to subject the wayward presidential speaker to the risk of impeachment, would invite dangerously destabilized politics. So, it is one thing to hold a president accountable for words associated with a criminal act, such as the obstruction of justice, but it is out of bounds to so lower the barrier to impeachment that the lying president faces losing his office.

To answer these concerns, the first order of business is to dispose of the notion that words may never form the basis of impeachable conduct. In Federalist No. 65, Hamilton defines an impeachable offense as one that inflicts “political” injury on a democratic society; it is not hard to imagine a chief executive who, by his or her speech, achieves this level of harm. An openly racist president would fall into this category. So would one who lied about the reasons for taking the country to war.

We need not rely on hypotheticals. The Nixon case is precedent on this question. The House Judiciary Committee approved an article of impeachment citing Nixon’s publicly stated falsehoods about the Watergate break-in and his actions to investigate it, as violations of his constitutional oath to take care to faithfully execute the laws and his office. There is, then, no basis for the claim that words alone cannot justify the institution of impeachment proceedings.

Then there is the demagogue, who is also a liar but whose falsehoods are not solely or even always self-protective; they are the basic material out of which he builds his politics. Demagogues deceive in order to succeed, to advance their own interests, in the service of which they display contempt for any limits, such as legal restrictions or ethical norms, that would get in their way. The Framers were deeply concerned about the demagogue. The first of the Federalist Papers sounds the alarm about the “perverted ambition” of the political schemer who “hopes to aggrandize themselves by the confusions of their country.” This concern with demagoguery also shows up in the last of the papers, No. 85, linked to its threat to the constitutional order—to the “despotism” that may be expected from the “victorious demagogue.”

James Madison also worried about the elevation of “unworthy” leaders who would have “very great powers” and against whom the polity should be “effectually guarded.” He was eventually consoled that the “infirmities” of popular election would be “corrected by the particular mode of conducting it” and that the country would be protected from “ambitious or designing characters,” such as the demagogue. While the trust was a “high one, and in some degree perhaps a dangerous one,” Madison reasoned, the Constitution provided the remedy of impeachment for high crimes and misdemeanors “at all times,” in addition to the requirement of an election every four years.

The challenge is to identify with reasonable precision when a leader has departed from the accepted, rough-and-tumble rhetorical practice—from the standard license afforded politicians’ speeches and utterances—and has become a demagogue. Too often the label of “demagogue” is attached to any politician tagged as a “populist” in one sense or another. A skilled populist orator, stirring an audience to resent entrenched, wealthy interests, is always in danger of being denounced in these terms. The criticism is facile, failing to distinguish between a powerful advocate for a coherent populist program and a demagogue who mouths populist slogans. As Jan-Werner Mueller points out in his fine book on populism, “there was no populism in ancient Athens; demagoguery perhaps, but no populism.” The two are not the same.

The late historian Allen P. Sindler, evaluating the legacy of Huey Long, offered a useful distinction between the statesman—the sort of “worthy” president Madison had in mind—and the demagogue: The statesman “socializes the [popular] complaint, and to some degree he intellectualizes the complaint to a higher plane of awareness, and calls for a revision of some part of the social, economic, or political framework as the necessary solution.” In other words, he is engaged in constructively communicating with the electorate; he is inviting the use of reason and engaged argument, promoting collective deliberation and informed choice. By contrast, the demagogue “personifies the complaint, intensifies the ongoing irrational elements or merely relieves tension by expressing feeling.” In so doing, he attempts to seduce his followers into “an emotional attachment” to him, to “his person.”

The Sindler definition gets at the key element in the conduct of the demagogue, which is the manipulation of language to attract and maintain popular support in service of the demagogue’s unbounded self-interest. The leadership function has become pathologically personalized; personal ends and ambitions are of primary importance to the demagogue. His self-interested ends justify the use of virtually any means—or at least any he could hope to get away with.

Among the consequences is the demagogue’s resistance to institutional and legal limits on that power. In Michael Signer’s words, the demagogue may, as he sees fit, “threaten an outright…break with established rules of conduct, institutions, and even the law.” When an adversary demanded that he heed the state Constitution, Huey Long infamously responded: “I’m the Constitution around here now.” To violate or circumvent the law, the demagogue believes that he requires only the proclaimed validation of the “people” who stand behind him. As James Fennimore Cooper wrote in his 1838 essay “The Demagogue,” it is in “affecting a deep devotion to the interests of the people” that the demagogue claims justification to put those interests “before the Constitution and the laws.”

The demagogue’s aims lead relentlessly toward the maintenance of high-pitched rhetoric and its ready escalation. He is, after all, a leader charged with giving effect to the popular will that he personifies and defending against the barriers wrongly erected against it. If constitutional laws and legal limits must give way, so too must the objections and opposition of adversaries. The demagogue specializes in lashing out. As Arthur Schlesinger Jr. noted of Long, “vilification was his particular weapon.” Joseph McCarthy, another classic American demagogue, specialized in personal attacks guided by a belief that, as his leading biographer has written, he was required to “bludgeon anyone who disagreed with either his methods or his conclusions.”

Of course, many politicians may slip into demagogic speech on specific issues or during election campaigns. The fully fledged demagogue is, however, that kind of politician and leader: Demagoguery constitutes his style of political leadership, a style irreconcilable with the oath to execute his office in trust for others. This is the source of massive political “injuries…done immediately to the Society itself” identified in Federalist No. 65. Theorists who have taken up the subject of the demagogue agree on the seriousness of the damage. So a progressive student of demagoguery, Michael Signer, can agree with the prominent conservative scholar Harvey Mansfield that the demagogue is an “enemy” of democracy.

The Senate’s censure of Joseph McCarthy illustrates the costs of demagoguery and is an example of an institutional response. McCarthy was, of course, a chronic liar: He famously and routinely ignored facts and fabricated others. He was ravenous for publicity and ruthless in its pursuit. He showed scant concern for constitutional or legal limits, and he observed no limits in his attacks on his adversaries and disdain for opposing points of view.

Responding to McCarthy in 1953, former President Harry Truman defined “McCarthyism” as the “rise of the demagogue” who thrived on the “corruption of truth” and “the abandonment of the ‘due process’ of law.” And in calling for McCarthy’s censure, an early and eloquent opponent, Sen. Ralph Flanders of Vermont, urged the Senate to defend itself from “demagogy [sic].” When the Senate did censure McCarthy, it included among the charges his demagoguery, in particular the “abuse” packed with falsehoods that the senator showered on Senate investigating committees and their members. This, the censure resolution stated, had contributed to his obstruction of the “constitutional processes” of the Senate. The injury to these processes was accomplished by words. His offense, Dwight D. Eisenhower wrote years later, was that he was a “vicious demagogue.”

If Congress saw in a president what Truman and the Senate denounced in McCarthy, would it not be able to consider removal from office by impeachment? McCarthy inflicted extensive damage on the political process with his falsehoods: whipping up animosities and divisions that undermined considered public debate and deliberation; trampling on individual constitutional rights; disrupting the functioning of the legislative branch; and seeking to intrude into matters within the jurisdiction of the executive. The Senate acted to isolate and disarm him, and for that purpose censure was sufficient, even if expulsion was an option.

The censure of McCarthy ended his career and his national political influence. While the demagogic executive is not within the grasp of Senate disciplinary rules, he or she is subject to impeachment, and it is not clear why Congress would be unable to meet head-on through the impeachment process the same danger of demagoguery posed to the democratic process; a danger that lawmakers would not tolerate in their own institution.

Resistance to this conclusion may stem, in part, from a tendency to legalize the impeachment process. Perhaps some take comfort in holding the definition of an impeachable offense as close as possible to the elements of a legal violation. Charles Black’s guidance shows how a blinkered legalism can impose unwarranted limits on an otherwise balanced, careful judgment about the scope of Congress’ impeachment power. On the one hand, Black was certain—and right—that impeachable offenses were not necessarily violations of law. On the other, he was adamant that lawyers must lead the congressional deliberation because “impeachment is a matter of law, foursquare and all the way.” If it takes Congress takes this view of the grounds for impeachment, it might mistakenly conclude that the closer presidential misconduct is to discrete open-and-shut legal violations, the more suitable it would be for redress through impeachment.

It is possible that President Nixon’s encouragement, commission and cover-up of actual crimes pushed perceptions of the impeachment process toward this legalized model. Nixon’s case was straightforward. The Framers intended a process more complicated and subtle, one fully open to evidence of corruption or unfitness that was “political” nature. Commentators, Black included, have generally recognized this. Black three-pronged test for impeachable offenses covered those which were (1) which are extremely serious, (2) which in some way corrupt or subvert the political and governmental process, and ( 3 ) which are plainly wrong in themselves to a person of honor, or to a good citizen, regardless of words on the statute books. “Extremely serious” misconduct tending to “corrupt or subvert the political or governmental process” certainly more than sufficient to cover the case of the demagogue. This may not be the easy case, but a great deal rests on confronting it.

Another concern about the impeachment of the demagogue merits note: Its possible misuse to settle disagreements over policy or express frustrations with executive performance. The charge of demagoguery would then take the place of, and operate much like, the offense of “maladministration” that the Framers omitted from the impeachment clause. A number of writers have built something like this into their definition. In other words, they have superimposed on the clause a consideration of the deleterious policy effects of demagogic leadership. Sindler, for example, sees in the personalized attachment of follower to demagogue the obstruction of “any group awareness of either the real sources of their discontents or the real areas of solution.” This could suggest that the ouster of the demagogue could be a battle over what should be accepted to be a “real” policy problem or solution.

We need not go there. The offense of the demagogue is not any professed policy goal or political program, but the pursuit of political glory through rhetoric built on lies, vilification, and disregard for the laws and norms of democratic self-governance. The demagogue may accomplish his or her particular harms largely, even primarily, with speech, and this speech—the practice of demagoguery—marks out the territory of this kind of political leader. But those anxious about any speech-centered justification for the impeachment of the demagogue might also keep in mind that the politics of demagoguery is a politics hostile to limits on the fulfillment of ambition, self-glorification and the pursuit of power. Contempt for limits is the breeding ground for their violation. For the demagogue, the assault on limits need not stop with words, and he history of demagoguery offers ample examples, such as the case of Huey Long, where it did not.

Fear of “Lowering the Bar” for Impeachment

Doubt about words alone creating the basis for an impeachment action usually goes hand in hand with conviction that the bar to impeachment should be kept very high. The bar-lowering consideration rests on the democratic implications of an elected president losing office other than by defeat at the polls. But, as noted, there is also anxiety about the shock to the system--the destabilizing effects--of turning an executive out of office in this way.

This argument fails to give due weight to the destabilizing impact of the demagogue. To put it another way, the concern with governmental stability resides on both sides of the equation. The presidency today confers extraordinary powers on the declared winner. Yet, a victor emerges from a selection process that is, at best, quirky and can only with poetic license be described as “democratic.” Once there were barriers to entry into competition for the office and, as a result, Americans might at least have hoped for some effective screening and vetting of candidates. Now, those barriers are gone and the risks of a catastrophic presidency have skyrocketed. This lower barrier to getting into office should justify an adjustment of the barrier to impeachment when a demagogue slips in.

Considerations at the Present Time

It is not my purpose here to make the case for the impeachment of the current president; it is to advance the more general proposition that a president’s rhetorical practice is relevant in any assessment of his fitness for office. Words matter, and the ardent demagogue is a type of political leader whose language marks him out as unworthy to hold the office and a danger if allowed to retain it. To accept this proposition does not mean minimizing the exceptional character of impeachment. But there are also risks in misplaced anxiety about this constitutional process. It can lead to fatal hesitation in addressing the dangers of an unfit executive—unfit, because he or she is a demagogue.

Has Donald Trump opened himself up to this charge of impeachable demagoguery? In time, we will know. But the man who declared upon being nominated that “I am your voice” and “I alone can fix” the nation’s problems was delivering a message more than moderately structured for demagogic content. It was a foreshadowing.

Trump’s speech in office, much of it delivered in 140 characters to millions, is extremely and consistently loose with truth, often outrightly false, and contemptuous of institutions, including courts of law. His assaults on the media for “fake news” include the flat-out denial of reporting, including reporting he knows to be true, such as emerging chronicle of the 2016 Russian intervention w. He fired James Comey as FBI director for the stated reason that Comey was investigating that intervention—an investigation with implications for his, his family’s and his campaign’s legal interests. Then, he threatened Comey with the disclosure of “tapes” of their conversations; tapes that he later acknowledged did not exist.

It goes on:

The pardon of a political ally convicted of criminal contempt of court, previewing his action at a political rally and inviting the crowd’s approval of his defense of a law enforcement official for just “doing his job” by defying a federal court order.

The suggestion that, as recently as late September, the law enforcement apparatus he oversees consider a criminal prosecution of his 2016 opponent.

Trump’s speech, like that of the classic demagogue, is not merely replete with falsehoods and disdain for limits. Of Trump it may be said, as McCarthy’s biographer said of him, that “he [has] delighted in revenge and when attacked [will] return a blow twice as hard,” and in argument, he has “refused to concede a single point and clung tenaciously to his position.” Trump shares Long’s passion for vilification. And like his demagogic forebears, Trump relishes belittling opponents with mockery and demeaning nicknames: his “Crooked Hillary,” “Lyin’ Ted,” and “Little Marco” match up well with McCarthy’s “Senator Halfbright” (Fulbright) and “Ad-lie Stevenson.” And he does not reserve this mode of attack for campaign adversaries: just yesterday, he fired off a tweet to scorn the 5 foot, 7 inch tall Chairman of the Senate Foreign Relations Committee as "Liddle’ Bob Corker."

And it is not just in the brawling of a political campaign that Trump resorts to this slash-and-attack mode. He levels these verbal assaults in his steady tweeting on official matters, as he did recently when he bashed the chairman of the Senate Foreign Relations Committee, Bob Corker, for lacking “guts” enough to run for re-election. And he did the same in savaging his attorney general and his secretary of state for being weak. Demagogues have no taste for limits on their speech, and they do not worry that the absence of those limits will poison public debate and deliberation, or undermine the operation of government. The defense of their own personal position, the protection of their “brand,” reigns supreme, and they must do what they can to overwhelm their opposition. For in the end, it is, as the saying goes, “all about them.” The true demagogue cannot take the oath of office, which requires the subordination of personal interests to supra-personal constitutional imperatives, and mean it.

“We can’t shrug this off,” writes columnist Ruth Marcus, of Trump’s “failure[s] of empathy,” “narcissistic demand for praise,” uses of the “impulsive, bellicose taunt” and “challenge to constitutional norms.” But there is a tendency to mix up these personality characteristics and leadership traits with other serious weaknesses, such as the president’s policies or weak grasp of facts and inattention to detail. A demagogue could have all the strengths that Trump lacks and remain a “demagogue” who inflicts the same severe damage on the democracy. When Marcus rightly concludes that “this is not the way a president acts,” one might answer that it is the way a demagogue behaves.

It may be that, as in the case of his misrepresentations about the Russia inquiry “hoax,” the accounting for his words in an impeachment process will occur only in the context of a proceeding centered on other “concrete” offenses—on deeds, and perhaps legal or law-type misdeeds. This was how the House dealt with Richard Nixon’s lies to the public in the Watergate episode.

But it would be a mistake to see demagoguery as a lesser offense, introduced only to flavor other types of misconduct. If the demagogue is a serious threat to democracy, then he or she should be treated as such. We are required to attend closely to, and take seriously, a president’s words. As Harvey Mansfield has written, “[A]ny democracy…needs to identify and denounce demagogues and tyrants, for they are still its enemies.”

Bob Bauer served as White House Counsel to President Obama, and returned to private practice as a partner at Perkins Coie in June 2011. In 2013, the President named Bob to be Co-Chair of the Presidential Commission on Election Administration. He is a Professor of Practice and Distinguished Scholar in Residence at New York University School of Law, as well as the Co-Director of the university's Legislative and Regulatory Process Clinic.